Yesterday, John Fabian Witt of Columbia University published, in the Washington Post, a 4th-of-July-themed piece ostensibly on Thomas Jefferson and the Declaration of Independence and what we should learn from it; but mainly it was an attack on the Bush Administration, with Witt noting that one of Jefferson's bill of particulars in the Declaration against King George involved "war crimes", which meant (he claimed) that Jefferson believed in international law pertaining to war, which leads us to the Geneva Convention and Nuremberg, and thus to the fact that the Bush White House is ignoring this grand tradition what with Abu Ghraib, Guantanamo, etc etc etc. You can read his entire piece here.
Okay? Now, how many holes has this argument? Let's count them: 1] Jefferson never mentions international law in the Declaration. 2] Suggesting a direct link between the Declaration (which was about American independence, after all!) and, say, the World Court at the Hague, is mighty weak. 3] The American Revolutionary war was, for the most part, a conventional war; we have no idea what Jefferson would have thought about the very un-conventional conflict in which we now find ourselves. My guess is, Jefferson would have advised folks to allow the president plenty of flexibility. How do we know that? Well, 4] for one thing, Jefferson the strict constructionist, who'd denied in the 1790s that the Federal Government lacked the constitutional power to establish a national bank, suddenly lost those scruples when it came to the Louisiana Purchase in 1803. There was nothing in the Constitution that said Jefferson as president could purchase land. He did it anyway. And 5] when it came to the "terrorists" of Jefferson's day, the Barbary Coast pirates, Jefferson eventually used military force and sent in the U.S. marines after them when pirates had taken an American ship and its crew hostage.
Without explicit congressional authorization. Without a declaration of war. Would such action have fit into Professor Witt's conception of international law? I don't know. Jefferson didn't seem too worried about it.
